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Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[2015] QPEC 49

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council[2015] QPEC 49

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Traspunt No. 4 P/L v Moreton Bay Regional Council [2015] QPEC 49

PARTIES:

TRASPUNT NO. 4 PTY LTD

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO/S:

3002/12

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland at Brisbane

DELIVERED ON:

8 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2014

JUDGE:

Horneman-Wren SC DCJ

ORDER:

  1. [1]
    The appeal will be allowed to the extent that it relates to the clearing of fire breaks along the northern and eastern boundaries of lots 909 and 910.
  1. [2]
    The parties are to confer with a view to formulating appropriate orders and conditions of approval.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENT IMPACT ASSESSMENT AND APPROVAL GENERALLY – OTHER STATES AND TERRITORIES – whether development application was subject to a vegetation clearing application under the Vegetation Management Act – whether development application is assessable development prescribed under the Sustainable Planning Act 2009 – whether development application essential management – where proposed vegetation clearing to protect both residences and fence lines – where essential management allows for land to be cleared for a firebreak to a maximum of the greater of 1.5 times the height of the tallest vegetation or 20 meters to protect infrastructure excluding fences

ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – SPECIES AND HABITAT PROTECTION – whether development application subject of deemed approval – whether development application is subject to land that is critical habitat or an area of major interest under the Nature Conservation Act 1992 – where relevant land neither a critical habitat or area of major interest

ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – GENERAL PRINCIPLE – where appellant commenced separate proceedings in Court by originating application seeking a declaration that development application was the subject of deemed approval by Council – where appellant argued not excluded from deemed approval provisions as not critical habitat under the Nature Conservation Act 1992 as not on the register required under s 133 to be maintained – where Court dismissed the originating application – where appellant sought to re-agitate issue on the appeal – where no direct judicial determination on issue raised by appellant on the appeal as to deemed approval – where issue estoppel to the extent that the deemed approval was dismissed on the originating application

Nature Conservation Act 1992, s 13, s 29,  s 34, s 35, s 36, s 37, s 42AD, s 42AE, s 53, s 54, s 55, s 56, s 57, s 58, s 59, s 72, s 73, s 97, s 108, s 111, s 112 , s 113, s 115, s 123, s 126,  s 133

Sustainable Planning Act 2009, s 9, s 318, s 231, s 232, s 233, s 331, s 330,

Tropics World Heritage Protection Management Act 1993

Vegetation Management Act 1999

Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70.

Blair v Curran (1939) CLR 464.

COUNSEL:

Mr S J Given for the appellant instructed by Hallett Legal

Mr A Skoien instructed by Morton Bay Legal Services Department

  1. [3]
    On 4 July 2012 Moreton Bay Regional Council purported to refuse a development application of Traspunt No. 4 Pty Ltd by which Traspunt had sought a development permit to carry out operational work for what was described as “tree clearing for essential infrastructure”.
  1. [4]
    The clearing was to be performed on land owned by Traspunt on lots 909 and 910 on SP198688. The lots are located in Rothwell. Lot 909 is bounded to the South by Greene Street, and to the East by Sylvia Court. Along its northern boundary it adjoins 12 subdivisional residential Lots being Lots 218 to 228 on SP 198710 and Lot 328 on SP224087. A cleared easement, Easement F on SP213367, runs along the northern edge of Lot 909 against those residential lots. Lot 909 has a short northern boundary along Eugenia Avenue beside Lot 218. Lot 910 has an eastern boundary on Cowper Street and a northern boundary along Varuna Court. The intended clearing was identified on a proposed clearing plan attached to the application.[1]
  1. [5]
    Council’s reasons for refusing the application were that:

“(i) The proposed development conflicts with the achievement of a number of Desired Environmental Outcomes of the Redcliffe Planning Scheme; and

  1. (ii)
     The applicant has not provided sufficient grounds to justify the conflict with the Desired Environmental Outcomes in accordance with s 326(1)(b) of the Sustainable Planning Act 2009.”
  1. [6]
    In this appeal, Traspunt contends that the clearing of native vegetation which it seeks to undertake is exempt development as it is for “essential management” for which a development permit is not necessary by operation of s 235(1) SPA.
  1. [7]
    Alternatively, Traspunt contends that even if a development application was necessary, the Council did not have the power to refuse the application. It claims to have the benefit of a decision to approve the application deemed to have been made by operation of s 331 of the Sustainable Planning Act 2009 (“SPA”).
  1. [8]
    In the further alternative, it contends that the grounds for refusing the application are invalid because the desired environmental outcomes (“DEOs”) of the Redcliffe City Planning Scheme with which the development is said to conflict are themselves inconsistent with rights to clear land for essential management created by the Sustainable Planning Regulation 2009 (“SPR”).  To the extent that a planning scheme is inconsistent with a regulation made under s 232, the scheme is of no effect by operation of s 233(1) SPA.
  1. [9]
    In the still further alternative, Traspunt contends that if the DEO’s under the Planning Scheme are valid and that the planned development is in conflict with them, then there are sufficient grounds to justify approval despite the conflict.
  1. [10]
    If Traspunt’s succeeds in establishing[2] any of these contentions then the appeal, which proceeds by way of hearing anew,[3] should be allowed.

The course of events leading to refusal

  1. [11]
    On 11 July 2011 David Trask, the sole director of Traspunt, wrote to the Chief Executive Officer of the Council advising that Traspunt would be undertaking property maintenance on lots 909 and 910 on SP198688 in the near future. Mr Trask informed Council that Traspunt would be undertaking the clearing in exercise of its rights under Redcliffe District Local Law 20 “Protection of Vegetation” to maintain essential infrastructure. The letter also noted that Traspunt was compliant with the SPA in that the activity was exempt if the clearing was for a fire management line up to 10 m wide.  Mr Trask said:

“In this regard we will be providing a 10 m fire break buffer against the existing essential infrastructure i.e. fences and access gates.”[4]

  1. [12]
    Council replied by letter dated 23 September 2011 in which it advised that the 2005 Redcliffe City Planning Scheme did not include a definition of essential management clearing, and that any clearing on the site would trigger a code assessable operational works application under the Natural Features or Resources Code as the site is identified on Overlay Map 1 as containing biodiversity.
  1. [13]
    On 6 February 2012 Traspunt lodged its application for a development permit. On 24 February 2012 Council made a request for further information from Traspunt. On 13 March 2012 it wrote to Traspunt informing it that there were no referral agencies under the Integrated Development Assessment System (IDAS).
  1. [14]
    Traspunt’s response to Council’s information request was provided on 19 April 2012.
  1. [15]
    The SPA requires the assessment manager to decide an application within 20 business days after the decision stage starts.[5]  However, the assessment manager may give written notice to the applicant extending the decision making period by up to 20 days.[6]  Only one notice may be given,[7] but the decision making period may be extended further by agreement between the assessment manager and the applicant.[8]
  1. [16]
    On 23 May 2012 Council gave notice of an extension of the decision making period to 21 June 2012. On 21 June 2012 Council wrote to Traspunt seeking its agreement to a further extension of the decision making period to 19 July 2012. Traspunt did not agree.
  1. [17]
    Chapter 6, Part 5, Division 3, Subdivision 4 of SPA provides for deemed decisions to be made in certain circumstances.
  1. [18]
    If the assessment manager has not decided the application within the decision making period, including any extension, the applicant may, before the application is decided, give a deemed approval notice to the assessment manager that the application should be deemed to have been approved by the assessment manager.[9]  Traspunt gave a deemed approval notice to Council on 28 June 2012.  The assessment manager is taken to have decided to approve the application on the day the deemed approval notice is received.[10]
  1. [19]
    By notice dated 6 July 2012 Council advised Traspunt of its decision of 5 July 2012 to refuse the development application.
  1. [20]
    On 11 July 2012 Mr Trask wrote to Council on behalf of Traspunt referring to both its deemed approval notice and Council’s subsequent purported refusal, and seeking that Council provide a decision notice approving the application as the SPA requires.[11]
  1. [21]
    On 24 July 2012[12] Council wrote to Traspunt informing it that the deemed decision provisions of the SPA did not apply because, by s 330(c)(iv), those provisions do not apply to code assessable applications for development in a protected area, critical habitat or area of major interest under the Nature Conservation Act 1992 (“NCA”).  Council drew attention to the fact that the subject site is mapped under the Vegetation Management Act essential habitat map as being essential habitat for koalas.  After referring to the definition of critical habitat in s 13 of the NCA, Council concluded:

“Taking this into consideration the decision notice (refusal) issued on 6 July 2012 remains in effect as the site is identified as critical habitat under the ‘Nature Conservation Act’.”

Related proceedings for declaratory relief – issue estoppel?

  1. [22]
    At the same time as it commenced this appeal, Traspunt also commenced separate proceedings in the Court by originating application in which it sought a declaration that its development application was the subject of a deemed approval by Council. The application was dismissed by Andrews SC DCJ.[13]  It is necessary to consider this issue and the basis for the dismissal of the declaratory relief proceedings because Traspunt seeks to “re-agitate” that issue on this appeal.
  1. [23]
    In his reasons for judgment his Honour identified the issue for determination in those proceedings as being whether Traspunt had satisfied its onus of proof to establish that its application was not within one of the three exceptions relied upon by Council to exclude the application from being one to which the deemed decision provisions of the SPA might apply.  The first two of those exceptions were that it was an application for development in a critical habitat or area of major interest under the NCA, and thus excluded from the deemed decision provisions by s 330(c)(iv) of the SPA.  This was the basis for exclusion which had been raised by Council in its letter of 24 July 2012 in response to the deemed approval notice.
  1. [24]
    The third exception relied upon by Council was that it was a vegetation clearing application under the Vegetation Management Act (“VMA”) and thus excluded from the deemed decision provisions by s 330(d) of the SPA.  Council had not previously raised or relied upon that exception.  It was first raised in Council’s written submissions in the declaratory relief proceedings when the matter came on for hearing.  Traspunt made later submissions in response on the issue, but did not object to the issue being raised.  His Honour, therefore, ruled that Council was able to argue the vegetation clearing application exception.[14]
  1. [25]
    His Honour rejected Traspunt’s submission that land which fell within the definition of “critical habitat” as defined in the NCA was not a critical habitat under that Act unless and until it is registered on the register required to be maintained by the chief executive under s 133 of the NCA.  In so doing his Honour concluded that the purpose of s 133 was not to limit the areas of critical habitat, but to make the task of identifying them easier.[15]  His Honour later observed[16] that:

“The absence of any entry on the register showing the land to be ‘critical habitat’ does not establish that all land in Queensland lacks the qualities of ‘critical habitat’ and does not establish that the subject land lacks the qualities of ‘critical habitat’.”

  1. [26]
    His Honour then went on to find that Traspunt had put “no positive evidence before the Court on the issue of whether the land lacks the qualities which would meet the criteria for “critical habitat” set out in NCA s 13.  It relies on a map showing land to be “outside SPRP Koala Assessable Development Areas” but leads no evidence about whether the land lacks the qualities which would meet the criterion “essential for the conservation of a viable population of protected wildlife or community of native wildlife”.[17]
  1. [27]
    On that basis, his Honour held that Traspunt had failed to discharge its onus to establish the land did not meet the criteria for “critical habitat” set out in s 13 of the NCA.[18]
  1. [28]
    Council had led evidence, without objection, which included maps prepared under the VMA which identified the land as having certain qualities.  Traspunt had contended that the qualities demonstrated by those maps were for the purposes of the VMA and were not qualities falling within the criteria for “critical habitat” set out in the NCA. It contended that a map prepared under the VMA may relate to koalas but did not operate as a map for the purposes of s 13 of the NCA which did not include land mapped or designated under another Act.  Traspunt had submitted designations of vegetation under the VMA were for the conservation of vegetation, not for its conservation for the benefit of a particular animal, notwithstanding that a map related specifically to koalas.[19]
  1. [29]
    His Honour concluded that he did not have to determine the issue of whether those maps were admissible evidence of the land being essential habitat for koalas because the application was to be dismissed upon Traspunt’s failure to discharge its onus.[20]
  1. [30]
    Before hearing oral submissions in this appeal, the Court raised with counsel whether the judgment and reasons of Andrews SC DCJ in the declaratory relief proceedings gave rise to any issue-estoppel and, if so, its extent.[21]  The Court raised these issues prior to having read the parties’ written submissions and invited submissions on the issue.  After having adjourned to read the parties’ written submissions the Court observed that the parties had in fact engaged on those issues.[22]
  1. [31]
    However, Mr Skoien, who appeared for Council, submitted that he had approached the case on the basis of looking at the factual issues to see whether the characteristics of the land met one or other of the descriptions of critical habitat or area of major interest.[23]
  1. [32]
    Mr Given, who appeared for Traspunt, reminded the Court that he was still submitting that the absence of anything on the register makes it fall outside the definition under the NCA.[24]  The Court raised with Mr Given his ability to re-agitate that issue.[25] 
  1. [33]
    In Blair v Curran[26] Dixon J stated the nature of issue-estoppel in the following terms:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.

…

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

In the phraseology of Lord Shaw, ‘a fact fundamental to the decision arrived at’ in the former proceedings and ‘the legal quality of the fact’ must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.”

  1. [34]
    Although the issue upon which the declaration was sought was stated in broad terms in the originating application, that is that the development application was subject to a deemed approval by the Council, from the reasons of Andrews SC DCJ[27] it would appear to have been argued narrowly, and principally on the basis that an absence of the relevant land from the register conclusively established that it was neither critical habitat nor an area of major interest under the NCA.  Traspunt had not argued, so it appears from the reasons, as it now contends in its supplementary submissions,[28] that it is designation of land under the NCA as critical habitat or area of major interest which ultimately leads to the requirement for its inclusion in the register under s 113 of the NCA.  It now contends that for land to become a critical habitat or an area of major interest under the NCA requires a process under that Act to be undertaken.  It does not merely require consideration of the definition of those terms as contained in the NCA.[29]
  1. [35]
    In my view, to the extent that the reasons of Andrews SC DCJ could be said to have dealt with the issue now raised by Traspunt, because they moved from the conclusion that the absence of an entry in the register was not determinative to a consideration of whether Traspunt had satisfied the onus upon it to establish that the land did not meet the criteria for critical habitat in s 13, they could only be said to have done so indirectly.  There was, in my view, no judicial determination directly involving that issue. 
  1. [36]
    Traspunt is, therefore, able to raise that broader issue in this appeal.
  1. [37]
    It is quite apparent, for several reasons, that the broader issue of whether the development application was subject to a deemed approval was not determined in the declaratory relief proceedings. First, the formal order of the Court was to dismiss the application; it did not make a declaration in the negative that the application was not the subject of a deemed approval.
  1. [38]
    Secondly, there was no determination that the application was, or was not, an application for development in a critical habitat or area of major interest under the NCA.  That question was left open, it merely having been found that the absence of the land’s inclusion in the register did not establish that it was not, and that Traspunt had otherwise failed to establish that the criteria were not satisfied. 
  1. [39]
    Thirdly, the further exception under s 330(d) raised by Council in the declaratory relief proceedings, and which it also advances in this proceeding, was not resolved. 
  1. [40]
    In my view, the only issue to have been directly determined in the declaratory relief proceedings was that inclusion in the register is not required before land can be a critical habitat or area of major interest.
  1. [41]
    There have been no pleadings in these appeal proceedings in the traditional sense, however, pursuant to directions of the Court,[30] the respondent filed a document setting out its issues in the appeal.  Those issues did not assert that Traspunt was estopped from asserting in the appeal that the application was the subject of a deemed refusal as a consequence of the decision of Andrews SC DCJ.  Nor did those issues include that the application could not be subject to a deemed approval because it was a vegetation clearing application under the VMA as Council had raised in the declaratory relief proceedings and as it asserts in this appeal.
  1. [42]
    Nor did Council in its primary written submissions assert any issue-estoppel. It accepted that a key issue in the appeal was whether or not there was a deemed approval,[31] having acknowledged that Traspunt was re-agitating that issue.[32]  In that regard, Council submitted that the application was properly characterised as a vegetation clearing application under the VMA,[33] which it should have referred to the Department of Environment and Resource Management (DERM), and was not a development application capable of giving rise to a deemed approval by operation of s 330(c)(iv) and 330(d) of the SPA.[34]
  1. [43]
    In my view, Traspunt is estopped from contending that the absence of reference to the subject land in the register conclusively establishes that it is not critical habitat or an area of major interest under the NCA.  That was the issue directly determined by Andrews SC DCJ in dismissing Traspunt’s application for declaratory relief.  It was not, in my view, merely a decision on a question of law which was no more than a step in a process of reasoning. 
  1. [44]
    Traspunt is not, however, estopped from contending, more broadly, that the application is the subject of a deemed approval, including on the basis that the application is not one for development in a critical habitat or area of major interest. Within such broader contention it is not estopped from asserting that it is not a critical habitat or area of major interest under the NCA because the land has not been designated as such under that Act. 

Deemed approval

Section 330(c)(iv) – development in critical habitat or area of major interest under the NCA

  1. [45]
    If I am wrong in my conclusion that Traspunt is estopped from asserting that absence of reference to the subject land in the register required to be kept under s 133 of the NCA conclusively established that the application was not for development in a critical habitat or area of major interest, I would, in any event, respectfully reach the same conclusion as Andrews SC DCJ on that issue. 
  1. [46]
    In my view, the absence, or presence, of reference to the relevant land in the register could not, without statutory prescription, determine whether it was a critical habitat, or area of major interest under the NCA.  While s 133(1) of the NCA obliges the chief executive to keep a register of, amongst other things, critical habitats and areas of major interest,[35] should the chief executive fail to discharge that obligation, such failure would not render land which was otherwise a critical habitat or area of major interest under the Act not to be so. 
  1. [47]
    That the register does not have that determinative effect may be illustrated by consideration of other matters which are also required to be included in the register kept by the chief executive.
  1. [48]
    Section 133(1)(a) requires the chief executive to keep a register of leases granted under ss 34 to 37 and 42AD or 42AE of the NCA.  Each of those sections confers power on the chief executive to grant leases over national parks in certain prescribed circumstances.  The register records, but does not establish, the lease.  A failure to record would not affect the legal existence of the lease.
  1. [49]
    Section 133(1)(c) requires the chief executive to keep a register of management and conservation plans. Part 7 of the NCA deals with management and conservation plans.  It provides for a process whereby the Minister must give notice of the proposal to draft a plan and invite submissions,[36] consider submissions,[37] give notice of a draft plan and invite submissions,[38] consider all submissions in respect of the draft plan,[39] and prepare a final management plan.[40]
  1. [50]
    Section 119(1) provides that a final management or conservation plan does not have effect until it has been approved by the Governor in Council. By s 119(2) a final conservation plan is subordinate legislation.
  1. [51]
    Once given effect by approval of the Governor in Council, a failure of the chief executive to include a management or conservation plan in the register as required by s 113 would not alter that effect.
  1. [52]
    Absence from the register does not establish that the subject land is not critical habitat or an area of major interest.
  1. [53]
    The broader basis upon which it might be found that the application is not one to which the exception in s 330(c)(iv) applies requires consideration of the proper construction of the expression “an application for development in a protected area, critical habitat or area of major interest under the NCA”.
  1. [54]
    The Council submits that this statutory expression merely picks up the definitions of “critical habitat” and “area of major interest” as set out in the NCA.  If the area the subject of the development application meets the description by having the characteristics described in either of those definitions, then that is all that is required for the exception under s 330(c)(iv) to apply.  The application will not be one to which the deemed approval processes may apply.[41]  Council submits that the statutory expression in s 330(c)(iv) does not require the subject lands to have been designated as a critical habitat or area of major interest for the purposes of the NCA.[42]
  1. [55]
    Traspunt contends that the exception in s 330(c)(iv) only applies if the subject site has been designated as critical habitat or area of major interest under the NCA.[43]  It contends that it is immaterial if the land has been designated as such under some other legislation, for example the VMA.[44]  I note, however, that the VMA contains no definition of critical habitat or area of major interest and no process for making such a designation.[45]
  1. [56]
    As already noted, Traspunt submits that in order for land to be a critical habitat or area of major interest requires the steps for its designation as such under the NCA to be undertaken.[46]  It refers to the process for such designation as being “multifaceted, involving the possibility of declarations, management plans and compensation, which, ultimately leads to a requirement that such a designation be registered under s 133 of the NCA”.[47]
  1. [57]
    Traspunt refers to the absence of any notation in the register as being “conclusive evidence that the process has not been undertaken, that the land is not critical habitat or an area of major interest under the NCA, and no further examination is needed”.[48]
  1. [58]
    Asserting the register as conclusively establishing that fact is, for the reasons set out above, a course from which Traspunt is estopped. In any event, for the reasons also already explained, it would not conclusively establish the issue even if the course was open to Traspunt.
  1. [59]
    Before considering whether there is any evidence, other than the absence of a record in the register, by which it might be established that the relevant land has not been designated as a critical habitat or area of major interest through the processes by which that might occur under the NCA having been carried out, it must first be determined whether Council’s or Traspunt’s construction of s 330(c)(iv) is correct.  This requires close examination of this and other provisions within the NCA.
  1. [60]
    Section 13 of the NCA defines “critical habitat” as:

“(1)  Critical habitat is habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife, whether or not special management considerations and protection are required.

  1. (2)
     A critical habitat may include an area of land that is considered essential for the conservation of protected wildlife, even though the area is not presently occupied by the wildlife.”
  1. [61]
    “Area of major interest” is defined in the dictionary in the schedule to the NCA to mean:

“area of major interest means an area that contains natural resources of significant nature conservation value.”

  1. [62]
    The schedule also defines “natural resources” to mean:

“natural resources, in relation to—

  1. (a)
     a protected area; or
  1. (b)
     an area identified under a regulation or conservation plan as, or including—
  1. (i)
     a critical habitat; or
  1. (ii)
     an area of major interest;

means the natural and physical features of the area, including wildlife, soil, water, minerals and air.”

  1. [63]
    It is to be noted that this definition relates natural resources to those areas identified under a conservation plan as, or including, a critical habitat or an area of major interest. It directs attention to the conservation plan and its identification of those areas.
  1. [64]
    “Protected area” is defined in the dictionary to the NCA to mean:

“protected area means a protected area of a class mentioned in section 14.”

  1. [65]
    Section 14 specifies 13 different classes of protected areas as those to which the NCA applies.  They are:

“The classes of protected areas to which this Act applies are–

  1. (a)
     national parks (scientific); and
  1. (b)
     national parks; and
  1. (c)
     national parks (Aboriginal land); and
  1. (d)
     national parks (Torres Strait Islander land); and

(da) national parks (Cape York Peninsula Aboriginal land); and

  1. (e)
     national parks (recovery); and
  1. (f)
     conservation parks; and
  1. (g)
     resource reserves; and
  1. (h)
     nature refuges; and
  1. (i)
     co-ordinated conservation areas; and
  1. (j)
     wilderness areas; and
  1. (k)
     world heritage management areas; and
  1. (l)
     international agreement areas.”
  1. [66]
    Each of “national park (scientific)”, “national park”, “national park (Aboriginal land)”, “national park (Torres Strait Islander land)”, “national park (Cape York Peninsula land)”, “national park (recovery)”[49] and “resource reserve” are defined in the dictionary to mean an area dedicated as such under the NCA. 
  1. [67]
    Each of “conservation park”, “nature refuge”, “co-ordinated conservation area” and “wilderness area” are defined in the dictionary to mean an area declared as such under the NCA.
  1. [68]
    Each of “world heritage management area” and “international agreement area” are defined in the dictionary to mean an area declared as such under the NCA or another Act.
  1. [69]
    Section 29(1) of the NCA provides that the Governor in Council may, by regulation, dedicate a specified area of State land as a national park (scientific); a national park; a national park (recovery); a conservation park or a resource reserve. 
  1. [70]
    Section 40 provides that on approval of the management plan for a national park under s 119 that becomes Aboriginal or Torres Strait Islander land (other than in the Cape York Peninsula region or the North Stradbroke region) the Governor in Council must, by regulation, dedicate the national park as national park (Aboriginal Land) or national park (Torres Strait Islander land).
  1. [71]
    Section 41 requires the dedication by the Governor in Council, by regulation, of Aboriginal Land or Torres Strait Islander land that is not, or is not included in, a national park to be leased to the State and managed under a management plan as national park (Aboriginal land) or a national park (Torres Strait Islander land). Section 42 makes similar provision in respect of the sub-lease of such land to the State for that purpose.
  1. [72]
    Sections 42AA, 42AB and 42AC provide for the Minister to make recommendations to the Governor in Council for the dedication of national park land in the Cape York Peninsula region as national park.
  1. [73]
    Sections 44 to 46 provide for the declaration, by regulation, by the Governor in Council of a specified area of State land, or the area the subject of a conservation agreement reached between the Minister and land owners, as a nature reserve, a co‑ordinated conservation area or a wilderness area. 
  1. [74]
    Section 49 provides for the compulsory declaration as a nature refuge of an area or part of an area that is, or includes, in the opinion of the Minister, an area of major interest or a critical habitat in circumstances in which the Minister and land owners are unable to agree on the proposed declaration of a nature refuge or the terms of a conservation agreement. The Governor in Council may, by regulation, declare a nature refuge. The regulation must describe the area for which the declaration is made.
  1. [75]
    Section 53 to 55 provide for the declaration, by regulation, by the Governor in Council, as world heritage management area of an area which has been included in the World Heritage List established under the World Heritage Convention and for which a management plan has been approved. The regulation must describe the area for which the declaration is made.
  1. [76]
    Similarly, Sections 57 to 59 provide for the declaration, by regulation, by the Governor in Council, as an international agreement area, of an area which in the Minister’s opinion has internationally significant values. The regulation again must describe the area for which the declaration is made.
  1. [77]
    Section 67 confers an entitlement to compensation upon a landowner whose interest in land is injuriously affected under the declaration of a nature refuge or a regulation giving effect to a management plan for a world heritage management area or an international agreement management area.
  1. [78]
    Part 5 of the NCA deals with wildlife and habitat conservation.
  1. [79]
    Section 72(1)(c) provides that wildlife is to be managed in accordance with any conservation plan for the wildlife. Section 73(a) provides that protected wildlife is to be managed, amongst other things, to identify the wildlife’s critical habitat and conserve it to the greatest extent possible.[50]
  1. [80]
    Section 97(2)(a) makes it an offence for unauthorised persons to take, use, keep or interfere with native wildlife (other than protected wildlife) in an area that is identified under a conservation plan as, or including, a critical habitat or an area of major interest, other than under the conservation plan.
  1. [81]
    Section 102 permits the Minister to make an interim conservation order for the conservation, protection or management of a protected wildlife habitat that in the minister’s opinion is a critical habitat, or an area which in the Minister’s opinion is an area of major interest.
  1. [82]
    Section 108 entitles a landowner of land subject to an interim conservation order to compensation.
  1. [83]
    Section 111 requires the Minister, as soon as practicable after the dedication or declaration of any of the types of protected areas specified under s 14, to prepare a management plan for the area. 
  1. [84]
    Section 112 provides that the Minister may prepare a conservation plan for any native wildlife habitat or area that is an area of major interest. Such conservation plan may make provision about the use or development of land in an area identified under the plan as, or including, a critical habitat or an area of major interest.[51]
  1. [85]
    Section 113 provides that the Minister must give public notice that the Minister proposes to prepare a draft management or conservation plan which must, amongst other things, specify the protected area, area of major interest, or native wildlife habitat concerned.[52]  The notice must invite submissions.[53]  Those submissions must be considered by the Minister when preparing a draft management or conservation plan.[54]
  1. [86]
    Under s 115(1) the Minister must give public notice when a draft management or conservation plan has been prepared.  That notice must specify the protected area, area of major interest or native wildlife habitat concerned.[55]  It too must invite submissions.[56]  Those submissions too must be considered by the Minister in preparing a final conservation plan.[57]
  1. [87]
    As already referred to, a final management plan or conservation plan does not have effect until it has been approved by the Governor in Council.[58]  A final conservation plan is subordinate legislation.[59]  On its approval, the chief executive must give effect to a conservation plan for native wildlife habitat or area of major interest.[60]
  1. [88]
    Section 126 creates an entitlement to compensation for a landowner whose interest in land in an area identified under an approved conservation plan as, or including, a critical habitat or an area of major interest is injuriously affected by a restriction or prohibition imposed on the landowner’s existing use of the land.
  1. [89]
    I have set out these provisions of the NCA at length because they demonstrate how protected areas, critical habitats and area of major interest are established or identified, and some of the consequences of that which the NCA creates.
  1. [90]
    In my view, when s 330(c)(iv) of the SPA refers to an application for development in a protected area, critical habitat or area of major interest under the NCA, it is referring to development in areas established or identified as such pursuant to those provisions.  It is not merely adopting the definitions of those areas as contained in the NCA. 
  1. [91]
    This construction is, in my opinion, supported by other provisions of both the NCA and the SPA. 
  1. [92]
    First, there are numerous provisions in the SPA where the legislature has expressly adopted definitions of terms in other Acts.  In each instance it has used the expression “as defined under” the particular Act.[61]
  1. [93]
    Secondly, the construction which I favour is consistent with s 123 of the NCA.  Section 123 provides:

“123(1) This section applies to land in—

  1. (a)
     a protected area for which a regulation is in force giving effect to a management plan for the area; or
  1. (b)
     an area identified under a conservation plan as, or including, a critical habitat or an area of major interest.
  1. (2)
     A local government must not issue or give any approval, consent, permit or other authority for a use of, or a development on, the land that is inconsistent with the regulation or plan.”
  1. [94]
    This prohibition in s 123(2) upon local governments granting approvals for development on land in a protected area for which there is a regulation, or an area identified under a conservation plan as or including a critical habitat or an area of major interest, which is inconsistent with the regulation or plan, sits well with a construction of s 330(c)(iv) which exempts from the deemed decision processes applications for development in such areas.
  1. [95]
    At the relevant time, another exception to the deemed decision processes under s 330(c)(i) was an application for development in a wet tropics area under the Wet Tropics World Heritage Protection and Management Act 1993.  “Wet tropics area” was defined in schedule 3 to that Act to mean:

“… the Wet Tropics of Queensland World Heritage Area described in the World Heritage list kept under the World Heritage Convention.”

  1. [96]
    Schedule 1 to that Act contained the Management Scheme Intergovernmental Agreement for Wet Tropics of Queensland World Heritage Area. That agreement contained prohibition upon local authorities similar to that in s 123 of the NCA.  It provided:

“Management plans will prevail over Local Government planning schemes to the extent of any inconsistency. A local authority must not issue or give any approval, consent, permit or other authority, in relation to a development on land in the Area, that is inconsistent with a management plan.”

  1. [97]
    The exception in s 330(c)(i) again sits well with that prohibition. 
  1. [98]
    In each of these instances, the exemption from the deemed decision processes ensures that development which could not be approved by the local government is not able to gain approval in default of a decision being made.
  1. [99]
    Thirdly, if s 330(c)(iv) is construed in this way, whether the application is amenable to the deemed decision processes can be ascertained from the time at which the application is made.  As these proceedings demonstrate, great uncertainty results if the application of the deemed decision regime cannot be ascertained from the time of application.  An applicant, as has occurred here, may follow the processes for obtaining a deemed approval, only to have a local authority later assert the decision was not one amenable to those processes because, in its opinion, the land the subject of the application has the qualities as described in the definitions of critical habitat and area of major interest contained in the NCA. Whether the Council’s opinion in that regard was correct, and thus whether the application was one which could be subject to a deemed approval, could only be resolved in an appeal such as this.
  1. [100]
    The purpose of s 330 is to identify by exclusion those applications to which Chapter 6, Part 5, Division 3, Subdivision 4 of the SPA do not apply.  In my view, it is intended to thus permit the identification of those applications to which the subdivision does apply.  Once identified as an application amenable to the regime, the process which may lead to a deemed approval can be followed.  That process requires the applicant to take steps.  The decision is not simply deemed to be made upon the expiration of the time limited.  A construction which permits the applicant to identify whether the application is one in respect of which it can take those steps allows the intended purpose to be achieved. 
  1. [101]
    On that basis, I would conclude that the exception to the deemed decision regime created by s 330(c)(iv) does not apply in circumstances in which the land the subject of the development application has not been established as a protected area under a regulation or identified as or including critical habitat or an area of major interest under a conservation plan approved by the Governor in Council under the NCA.
  1. [102]
    There is evidence in these proceedings, beyond absence from the register, that the relevant land is neither a critical habitat nor area of major interest identified in that way.
  1. [103]
    Mr John Finglas, a town planner, deposes to having been engaged by Traspunt to consider whether lots 909 and 910 have been identified as critical habitats pursuant to the NCA.[62]  Mr Finglas exhibits an agency advice obtained from the Department of Environment and Heritage Protection website on 19 July 2012.  That advice includes a statement that “there are currently no declared ‘critical habitats’ or ‘areas of major interest’ listed under the Nature Conservation Act 1992.  No development application should therefore be referred to the Department under this trigger.”[63]
  1. [104]
    Mr Finglas also exhibits an email dated 22 August 2012 from Mr David Murphy, Acting Principal Conservation Officer, Threatened Species, Department of Environment and Heritage Protection in which Mr Murphy advises: “In regards to ‘critical habitat’ under the Queensland Nature Conservation Act 1992, there are none declared at present and therefore there is no current register.”
  1. [105]
    On that basis, I am satisfied that the exception under s 330(c)(iv) did not apply.
  1. [106]
    If I am wrong in my conclusion as to the proper construction of the expression “under the Nature Conservation Act” as used in s 330(c)(iv), and that land the subject of a development application may be a critical habitat or area of major interest under the NCA if it has the qualities described in the definitions of those terms, I should record that I would not have found, as a matter of fact, that the land the subject of this appeal was either a critical habitat or area of major interest.
  2. [107]
    Dealing first with “area of major interest”, in the Joint Statement of Ecological Experts, Mr Moffit on behalf of Traspunt and Mr Caneris on behalf of the Council, agree that the site is not an area of major interest.[64]  Dr Olsen did not express any opinion directly on this issue.
  3. [108]
    As to “critical habitat” I prefer the evidence of Mr Moffit to that of Dr Olsen and Mr  Caneris.
  4. [109]
    Mr Moffit, in his statement of evidence, accepts the site supports koalas but does not believe that it provides critical habitat for the species for a number of reasons.  First, in and of itself it is not essential to the viability of the Pine Rivers koala population.  Secondly, it does not fulfil a strategic landscape role, for example as a refuge or corridor, which is essential to the viability of that koala population.  Thirdly, in his view, there are no other characters of the site’s habitats or the koalas occupying those habitats which cause him to believe that the site is essential for that koala population.[65]
  5. [110]
    Mr Caneris in his report[66] identifies that his access to the site to conduct sufficient work to demonstrate his view that the subject site holds what constitutes critical habitat was limited, although having carried out site inspections on two occasions in February and May 2013.  Given those limitations, he expresses the view that it is for Mr Moffit to present evidence to demonstrate why the site does not hold critical habitat.[67]  He states that:

“In a very general sense Eucalypt dominated habitats are essential habitat to koala and should be viewed as critical to the species survival.”[68]

  1. [111]
    In the joint statement of ecological experts, Mr Caneris says:

“Given the koala is wholly defendant [sic] on the retention of Eucalypt habitats; I fail to see how they could not be considered as critical to the species survival.”[69]

  1. [112]
    Mr Caneris goes on to say:

“Whilst I accept that the subject alone does not support a population of koalas, it is a component of wider habitats that do.  If the above criterion was applied then no habitat in the local landscape would be viewed as critical and if removed there would be no koalas.  It is my opinion that these habitats, being those areas mapped as remnant vegetation and identified as essential habitat, are clearly critical to the species survival in the local landscape.”[70]

  1. [113]
    To these observations, Mr Moffit replies that he interprets the critical habitat definition to mean that the subject site would need to have intrinsic values which were essential for the conversation of a viable population, and that whilst he accepts that koalas are dependent on the retention of Eucalypt habitats, he notes that the subject site supports only a small component of the Eucalypt habitats which occur in the broader landscape and that the subject site should not be defined as a critical habitat “because in and on itself it is not essential to the viability of the Pine Rivers koala population.”
  2. [114]
    Mr Moffit observes that Mr Caneris’ view, if accepted, would mean that all Eucalypt habitat in the broader landscape could be identified as critical habitat.  He expresses the view that the identification of land as containing critical habitat is intended to protect specific areas or features which are of exceptionally high conservation value relative to the range of habitats ordinarily occupied by that species.
  3. [115]
    In my view, the approach of Mr Moffit is considerably more in accord with the definition of critical habitat in the NCA.  Mr Caneris’ view seems to lead inexorably to the conclusion that all Eucalypt habitats must be considered critical habitat.  In contrast, Mr Moffit’s approach leads to the conclusion that there may be some particular areas which are essential for the conversation of a viable population of koalas.  He identifies such an area in fig 7 to his statement of evidence.[71]
  4. [116]
    These differing views are reflected in the conclusions expressed by each of Mr Moffit and Mr Caneris in the Joint Statement of Ecological Experts.[72]
  5. [117]
    In the separate statement of Mr Caneris contained in the Joint Statement of Experts, he expresses the view that the assessments carried out were insufficient to demonstrate the level of importance to koalas on the subject site.[73]  With that limitation, he expresses the view that the site should be considered as holding important koala habitat values in the local landscape, but the extent to which those values are critical to the species’ survival is unknown as there had not been sufficient effort to establish the site’s extant values or the actual level of use by koalas.[74]  Notwithstanding those limitations he expresses the overall view that:

“It is clear that as koalas are present and using the site as breeding habitat, the vegetated habitats present are an essential component contributing to the conservation of a viable population (based on observed evidence of breeding and that I have no evidence to suggest the local population is unviable), of protected native wildlife.  Therefore the site and its habitats should be viewed as comprising habitat that is critical to the survival of the species.  That is koalas are dependent on the retention of suitable Eucalypt resources to maintain their existence.  Therefore the site is, in my view as detailed above, critical habitat.”[75]

In my opinion, in expressing that conclusion Mr Caneris applies a test different to that provided in s 13(1) of the NCA.  That view is supported by consideration of Mr  Caneris’s oral evidence wherein he conceded that if the habitat was removed entirely that would not cause the loss of the viability of koalas in the local landscape.[76]  And that the removal of the habitat on its own was not critical to the viable population of the koala in that area but that “if everybody who had the last remaining bits of mapped central habitat was to remove half of it, then I would suggest to you that is.”[77]

  1. [118]
    For his part, Dr Olsen deferred to Mr Caneris with regard to fauna matters.[78]

In my view, the area of land subject to the development application was not “critical habitat” as defined by s 13 of the NCA.

Section 330(d) –a vegetation clearing application made under the VMA

  1. [119]
    Whether the land was amenable to a deemed approval still requires consideration of the further exception raised by Council: that the application was a vegetation clearing application under the VMA and thus excluded by s 330(d) of the SPA which provides that the deemed decision regime does not apply to “a vegetation clearing application under the Vegetation Management Act”. 
  1. [120]
    At the relevant time, a “vegetation clearing application” was defined by the VMA to mean:

“vegetation clearing application  means a development application that involves development that is—

  1. (a)
     the clearing of native vegetation as defined under that Act; and
  1. (b)
     assessable development prescribed under section 232(1) of that Act.”[79]
  1. [121]
    “Native vegetation” was defined by the SPA, somewhat circularly, to mean:

“native vegetation means vegetation under the Vegetation Management Act.”

  1. [122]
    Section 8 of the VMA provided:

“Vegetation is a native tree or plant other than the following—

  1. (a)
     grass or non-woody herbage;
  1. (b)
     a plant within a grassland regional ecosystem prescribed under a regulation;
  1. (c)
     a mangrove.”
  1. [123]
    Traspunt concedes that the application “probably” involves the clearing of native vegetation within paragraph (a) of the VMA definition of “vegetation clearing application”.[80]
  1. [124]
    The area of contention between the parties is as to whether paragraph (b) of that definition is met. Is it assessable development prescribed under s 232(1) of the SPA? 
  1. [125]
    It should be noted that Traspunt’s primary contention is that it is not assessable development and that, therefore, no development application was necessary at all. That is, it contends that the issue of whether it was assessable development has broader application beyond the exception in s 330(d). Traspunt contends that it is not assessable development because it is for “exempt development”.  Section 235(1) provides that a development permit is not necessary for exempt development.  On Traspunt’s argument, that exempt status arises in the following way.
  1. [126]
    The activity which it wishes to carry out involves the clearing of vegetation and is thus “operational work” as defined by s 10 of the SPA.  As such, it is also “development” within the meaning of that expression as set out in s 7 of the SPA.
  1. [127]
    Section 231(2) of the SPA makes all development exempt development unless it is, relevantly, assessable development.  Section 232(1)(c) provides that a regulation may prescribe that development is assessable development. 
  1. [128]
    Section 9(1) of the SPR prescribes that development stated in Schedule 3, Part 1, Column 2 is assessable development.  Column 2 of Table 4 of Schedule 3 to the SPR identifies as assessable development operational work that is the clearing of native vegetation on freehold land, unless the clearing is, relevantly, clearing mentioned in Schedule 24, Part 2 for the particular land.
  1. [129]
    Schedule 24, Part 2, for freehold land, identifies as development which is not assessable under Schedule 3, clearing vegetation necessary for essential management.
  1. [130]
    The dictionary in Schedule 26 to the Regulation defines “essential management” to mean:

“essential management means clearing native vegetation—

  1. (a)
     for establishing or maintaining a necessary firebreak to protect infrastructure other than a fence, road or vehicular track, if the maximum width of the firebreak is equivalent to 1.5 times the height of the tallest vegetation adjacent to the infrastructure, or 20m, whichever is the greater; or
  1. (b)
     for establishing a necessary fire management line if the maximum width of the clearing for the fire management line is 10m; or

…”

  1. [131]
    Traspunt contends that the vegetation clearing which it seeks to undertake falls within that definition. It submits that, as a consequence, it is not assessable development under Schedule 3, Part 1, Table 4.
  1. [132]
    It further submits that if it not an assessable development, it is an exempt development under s 231.[81]  Traspunt then submits that, by operation of s 235, as exempt development, no development permit is necessary,[82] and the development need not comply with planning instruments, other than any State planning regulatory provision[83] (of which there are none).
  1. [133]
    Insofar as the Redcliffe City Planning Scheme makes the development assessable, Traspunt submits that to do so is “clearly inconsistent with the rights created in the Regulations for the clearing of land for essential management”.[84]  As a consequence, it submits that the scheme is of no effect by operation of s 233(1) of the SPA. 
  1. [134]
    Section 233(1) provides:

“To the extent a planning scheme or temporary local planning instrument is inconsistent with a regulation made under section 232(1) or (2), the planning scheme or temporary local planning instrument is of no effect.”

  1. [135]
    The Council submits that the proposed works are not, at least in part, “essential management” because the infrastructure that is to be protected by the fire breaks includes fences. On that basis, paragraph (a) the definition of “essential management” cannot apply. It submits that paragraph (b) of the definition in respect of fire management lines also does not extend to fences.
  1. [136]
    It further contends that the proposed fire breaks exceed what is necessary to protect other infrastructure and, therefore, the work falls outside of the definition of “essential management” on that basis also.
  1. [137]
    In respect of the Redcliffe City Planning Scheme, the Council says there is no conflict between it and any regulation made under either s 232(1) or (2).

Is it assessable development prescribed under s 232(1)?

  1. [138]
    As already noted, Traspunt’s IDAS Form 1 operational works application described the proposed work as “tree clearing for essential infrastructure”.[85]  The covering letter to Council also referred to “clearing for essential infrastructure” and enclosed advice from SMEC Australia Pty Ltd “regarding the proposed clearing to protect essential infrastructure”.[86]
  1. [139]
    The advice from SMEC referred to its understanding that Traspunt sought “to undertake clearing to protect infrastructure and fence lines”.[87]
  1. [140]
    The SMEC advice referred to the Guide to Exemptions under the Vegetation Management Framework published by DERM and commented that it did not clearly explain the “protection of infrastructure” exemption as it related to fence lines. The advice did, however, note that “DERM has advised that the allowable clearing limit for the protection of a fence line is 10 metres”.
  1. [141]
    The SMEC advice then referred to tree height analysis which had been conducted on the property and which showed that the average height for the tallest 10% of trees adjoining the site boundary was 24.9 metres and that, using the exemption for protection of infrastructure, this created an allowable clearing width of 37.4 metres for areas adjoining existing development. Those clearing areas would be applicable to boundaries in the north and east of lot 910 and in the north of lot 909. It noted that the clearing plan showing those clearing extents on those boundaries included, in some instances, a road. The advice noted that clearing limits of 10 metres had been applied appropriately to the remaining site boundaries. The appropriateness of those other 10 metre clearances was, no doubt, based upon the advice previously received from DERM to which reference had been made.[88]
  1. [142]
    Traspunt had written to DERM on 21 June 2011,[89] informing it of a need “to undertake clearing of existing fence lines for fire management and asset protection purposes”.  Traspunt sought DERM’s advice as to its requirements, if any, to undertake the required clearing.
  1. [143]
    DERM responded by email on 27 June 2011.[90]  It attached a copy of the guide, and advised:

“The clearing activity described in your letter dated 21 June 2011 – being for fire management purposes – is exempt under the Sustainable Planning Act 2009 if the clearing is for a fire management line up to 10 metres wide.  The clearing activities that are exempt, the Department need not be notified.  Please refer to the guide to (sic) exemptions for other exempt clearing activities.”

  1. [144]
    The purpose of clearing was repeated in correspondence to Council from Land Partners, a firm of built environment consultants, on behalf of Transpunt on 15 February 2012 in respect of a related development application in which it was said:

“It should be noted that an application has recently be (sic) lodged by Traspunt No. 4 Pty Ltd over the subject site, seeking a Development Permit for operational works (Clearing Vegetation) to protect established infrastructure (in this case fence lines surrounding the site).”

  1. [145]
    Part 4 of the guide sets out five steps for determining if clearing can be done under an exemption under the VMA.  Step 4 is determining whether the exemption applies for the size of the proposed clearing.  It provides:

“Clearing of a certain size for routine property management activities is exempt. If clearing exceeds the size stipulated then a permit to clear is required or clearing must comply with the regrowth vegetation code.”

  1. [146]
    Step 5 provides that if the clearing is listed as an exemption in section 5 of the guide, landowners do not need to apply for any other approval under the vegetation management framework for that clearing. Table 2 in section 5 includes two exemptions which reflect paragraphs (a) and (b) of the definition of “essential management” as follows:
  • “To establish or maintain a fire break to protect infrastructure if the maximum width of fire break is 1.5 times the height of the tallest adjacent tree or 20 metres, whichever is the greater.
  • To establish a fire management line that is up to 10 metres wide.”
  1. [147]
    The amended acknowledgement notice issued by Council on 13 March 2012, in which it was stated that there were no IDAS referral agencies, followed a series of communications between Traspunt and Council.
  1. [148]
    On 8 March 2012 Ms Kathleen Hodgetts on behalf of Traspunt wrote to Council referring to Council’s original acknowledgment notice issued on 20 February 2012 in which, it would seem, DERM had been listed as a referral agency.  Ms Hodgetts stated that she had spoken with DERM which had confirmed that the proposed clearing activities for essential infrastructure were exempt, and that there were no requirements for referral.  She requested an amended acknowledgement notice be issued removing reference to referrals. 
  1. [149]
    Ms Julie Stokman replied on behalf of Council on 8 March 2012, requesting something in writing from DERM. She said that Council would then confirm that the application was “continuing along the information request stage as technically the application then wouldn’t need an acknowledgement notice”. 
  1. [150]
    On 9 March 2012 Ms Hodgetts emailed Ms Stokman, setting out the bases for Traspunt’s belief that no referrals were required. This included that paragraph (a) of the definition of “essential management” had been applied to the boundaries upon which there was adjoining development and that paragraph (b) of that definition had been applied to the remainder of the boundaries. She also referred to the previous advice of 27 June 2011 which had been received from DERM and attached a copy.
  1. [151]
    Ms Hodgetts replied by email on the same day, stating that Council agreed that DERM were not a concurrence agency for the application. On 12 March 2012 Mr Laycock on behalf of DERM emailed Ms Hodgetts, informing her that DERM could not do anything until Council, as the assessment manager, had amended the acknowledgment notice. 
  1. [152]
    The amended acknowledgment notice was issued and Ms Hodgetts emailed it to DERM on 20 March 2012, requesting that Traspunt’s referral to DERM be withdrawn.
  1. [153]
    In its response to Council’s information request dated 19 April 2012, Traspunt referred to the operational works application having been lodged “to undertake clearing to establish a fire control line to protect essential infrastructure (fence lines onsite and adjoining residential development offsite)”.
  1. [154]
    In his statement of evidence, Mr Wayne Moffit, the ecologist who had prepared the SMEC advice, referred to the purpose of the clearing being to protect fence lines on the site and residential development adjoining the site.[91]  He said that he understood that the fence lines had been established to stop illegal dumping on the site.
  1. [155]
    It is quite apparent form the various statements by Traspunt or on its behalf that Traspunt’s proposed vegetation clearing is intended to protect both residences on land adjoining certain boundaries on each lot and fence lines on each lot. The fences are expressly excluded as infrastructure to which paragraph (a) of the definition of “essential management” applies. Council’s submission in that regard must be correct.
  1. [156]
    However, I do not accept Council’s further submission that paragraph (b) of that definition cannot apply to the clearing along fence lines for the purpose of establishing a necessary fire management line. Mr Skoien on behalf of the Council submitted that to allow fences to be included under any of the other parts of the definition of “essential management” would render the exclusion of fences in paragraph (a) useless.[92]  That, however, is not the case.  Each provision still has work to do.  The exclusion of fences from infrastructure to which paragraph (a) relates means that the greater area of clearing for which that provision allows is not permissible in respect of fence lines.  That exclusion can sit quite consistently with the more general allowance of a narrower area of clearing for fire maintenance lines provided by paragraph (b).  The Council’s construction of paragraph (b) reads words of exclusion into it which are simply absent from the text. 
  1. [157]
    Nor do I accept Council’s submission that a landowner wishing to avail itself of either paragraph (a) or (b) of essential management must establish that a fire break or fire maintenance line of the particular dimensions proposed is necessary. In Council’s submission, the maximum widths of 20 meters or 1.5 times the height of the tallest adjacent vegetation in paragraph (a), and of 10 metres in paragraph (b), do not, of themselves, permit clearing to that extent. It submits that it remains for the landowner to establish in any particular case that the particular width proposed, up to the maxima, is necessary.
  1. [158]
    In my view, the word “necessary” when used in paragraphs (a) and (b) qualifies only, respectively, the words “fire break” and “fire management line”. If, in each instance, a fire break or fire management line is necessary, any clearance up to those maxima will be within the meaning of “essential management”. A narrower width may be cleared by the landowner, but that would be within the landowner’s discretion provided that the maxima are not exceeded.
  1. [159]
    To the extent that expert evidence might be admissible on the issue,[93] the opinion of Mr Robert Friend, the expert on bushfire issues called by the Council, that persons wishing to avail themselves of the essential management exclusion must “demonstrate that the necessary clearing of vegetation is such that they need to clear the maximum permitted under the essential management provisions”,[94] is incorrect.
  1. [160]
    The rejection of Council’s submission that the landowner must establish that a firebreak of the particular dimensions proposed is necessary, rather than a firebreak, per se, being necessary, leads me to the conclusion that in so far as the proposed clearing related to establishing a firebreak for the protection of the infrastructure, other than fences, and particularly the adjoining residential development, it was essential management. To that extent, it was not assessable development by operation of item 2(c) of Part 2 of Schedule 24 to the SPR.
  1. [161]
    This, in turn, leads to the conclusion that Transpunt was entitled to clear land for that purpose to a maximum of the greater of 1.5 times the height of the tallest vegetation or 20 metres. That is so notwithstanding that the bushfire experts jointly propose on asset protection zone of narrower dimensions. Those experts are in agreement that a firebreak is necessary. Once that necessity is established, Traspunt is able to clear a firebreak within those permissible maxima.
  1. [162]
    In my opinion, the distinction between paragraphs (a) and (b) is in their respective purposes for clearing. The purpose of the clearing for a fire break under paragraph (a) is the protection of infrastructure. Fences are excluded from the infrastructure for which protection may be provided. If the purpose of the fire break is the protection of a fence, it is not allowable as essential management.
  1. [163]
    The purpose of the clearing under paragraph (b) is the establishment of a necessary fire management line. A fire management line is not defined, however, literally, it must mean a line for the management of fire. Such management may take many forms, some of which were touched upon by Mr Friend in his evidence.  They would include providing access for bushfire suppression[95] and providing a system of fire breaks.[96] 
  1. [164]
    A necessary fire management line cleared along a fence line may have the additional advantage of protecting the fence, but that will be an incident of the clearing, not its purpose under paragraph (b) of the definition of “essential management”.
  1. [165]
    In my view, it is clear from the various statements made on the issue that the purpose for which the clearing was to be undertaken along the fence lines under the clearing plan proposed was for the protection of the fences, not the establishment of fire management lines.
  1. [166]
    For that reason the proposed clearing for that purpose would not fall within paragraph (b) and is not essential maintenance.
  1. [167]
    My conclusions in this regard are not inconsistent with the advice provided by DERM in its email of 17 June 2011. Frist, that advice was provided in response to Traspunt’s letter of 21 Junes 2011 in which it had identified the “need to undertake clearing of existing fence lines for fire management and asset protection purposes”. For the reasons already set out, I am of the view that the other evidence establishes that the actual purpose of the clearing was for asset protection, including the fences.
  1. [168]
    Secondly, that stated fire management purpose as described in Traspunt’s letter became the assumption upon which the DERM advice in response was provided. There was no consideration given by DERM to the accuracy of that assumption. It was not providing some definitive ruling on the status of the proposed clearing.
  1. [169]
    Even if clearing along the fence lines was for the purpose of establishing fire management lines (which I do not accept), I would not find that they were necessary. Paragraph 3.8 of the Joint Statement of Bushfire Experts[97] states that Mr Friend and Mr Hawkes agree that:

“Any clearing or management of understory and fuels along the fence lines, while not essential for bushfire approval or acceptable outcomes, will provide additional separation of fuels and hence must enhance overall bushfire protection.”  (emphasis added)

  1. [170]
    This evidence identifies that such clearing lacks the quality of necessity required under paragraph (b) for the clearing to fall within essential maintenance.
  1. [171]
    When directly asked about the necessity for additional fire management lines along the western boundaries of the two properties, given the asset protection zone along other boundaries as identified by the experts in their joint report, Mr Friend did not consider them necessary.[98]  That lack of necessity would be even more so on the basis that Traspunt is able to clear along those other boundaries to a greater extent than the identified asset protection zone.
  1. [172]
    Therefore, because that clearing was not essential maintenance, as defined, it was not clearing necessary for essential maintenance such that it was made not assessable development by operation of item 2(c) of Part 2 of Schedule 24 to the SPR.  It was, therefore, operational work which was assessable development by operation of s 9(1) and Schedule 3 of the SPR.  It was, therefore, assessable development prescribed under s 232(1) of the SPA.  It was, therefore, a vegetation clearing application under the VMA. 
  1. [173]
    As such, it was an application excluded from the deemed decision regime of the SPA by operation of s 330(d). 
  1. [174]
    As a consequence, Traspunt does not have the benefit of a deemed approval.

Exempt Development

  1. [175]
    Traspunt’s broader contention that, not being assessable development, it is exempt development for which a development permit is not necessary and which need not comply with planning instruments[99] also fails on this basis, in respect of that part of the clearing that was not essential management.
  1. [176]
    Council contends that even to the extent that the proposed clearing involves essential management there is no inconsistency between the Redcliffe Planning Scheme and a regulation under s 232(1) of the SPA, because “the regulation under s 232(1) of the SPA does not alter the level of assessment for the Proposed Clearing.”[100]   That submission ought be rejected. It is, in my view, based upon a misconstruction of ss 232(1) and 233 of the SPA.
  1. [177]
    Council’s submissions proceed from the uncontroversial proposition that s 231(2) of the SPA provides that all development is exempt development unless it is otherwise designated.[101] It then submits that “under s 232(1), a regulation may prescribe a different level of assessment for development.”[102] This misconstrues s 232(1) in that it suggests that there would be a level of assessment which would apply to the development in the absence of a regulation made under s 232(1). It may be the case that there is otherwise an applicable level of assessment,[103] but that is not necessarily so. In some circumstances, there would not be another “different” level of assessment which would apply; the development may otherwise be exempt.
  1. [178]
    The Council submits that s 233(1) of the SPA “makes is clear that a planning scheme cannot alter the level of assessment for development prescribed under a regulation under s 232(1).”[104] That is not, however, what s 233(1) says. Section 233(1) provides, relevantly:

“To the extent a planning scheme…is inconsistent with a regulation made under s 232(1)…the planning scheme…is of no effect.”

  1. [179]
    One effect of s 233(1) may be, as the Council submits, that a planning scheme cannot alter the level of assessment for development prescribed under a regulation under s 232(1), but that is not the full extent of its effect. This is the flaw in the Council’s submission that because the regulation under s 232(1) does not alter the level of assessment for the proposed clearing which is essential management, there is no inconsistency with the Redcliffe Planning Scheme which would make that clearing assessable development.
  1. [180]
    In my opinion, where a regulation under s 232(1) makes clearing of certain vegetation assessable development, but also creates an exception to that such that clearing which falls within the exception is not assessable development, a planning scheme which makes assessable that which is made not assessable under the regulation will be inconsistent with the regulation within the meaning of that expression as used in s 233(1). The planning scheme will by operation of s 233(1) be, to that extent, of no effect.
  1. [181]
    The consequence of this is that that part of the clearing which is for essential management is not code assessable under the planning scheme. It is, to that extent, exempt development.

Dakabin

  1. [182]
    I have reached my conclusion that the full extent of the proposed clearing was not exempt development without reference to the substantial volume of evidence sought to be tendered by Traspunt in relation to clearing of property owned by the Council at Dakabin, which occurred at about the time at which Traspunt lodged its development application, and for which Council itself made no development application.
  1. [183]
    The Council opposed the tender of this evidence. It submitted that it was inadmissible on grounds of relevance. The land the subject of that clearing was subject to different planning controls, it being subject to the Pine Rivers Plan, not the Redcliffe Planning Scheme. Council points out that the Pine Rivers Plan contains an exemption for vegetation clearing which mirrors the State exemption, but which is not included in the Redcliffe Planning Scheme. It submits that the clearing of a fire break to a width of 30 metres on that property without a development permit to protect buildings and community infrastructure is entirely consistent with the applicable State and local planning controls. Council also opposed the tender of the material on the basis that it contains inadmissible opinion and hearsay.
  1. [184]
    Mr Given, on behalf of Traspunt, submits that it is admissible and relevant as it would promote consistency and certainty in the planning process.
  1. [185]
    For the reasons already expressed, the question of whether the clearing the subject of these proceedings is essential management and thus not assessable development is able to be, and in my view should be, resolved simply upon a construction of the relevant statutory provisions as applied to the facts of this case. How Council, rightly or wrongly, viewed another matter does not assist in resolving the issues in this case.
  1. [186]
    There is also an aspect of this case which did not feature in the Dakabin matter. There would not appear to have been any part of the clearing undertaken in the Dakabin matter which involved clearing for the purpose of protecting infrastructure which was a fence. For the reasons set out above, that feature of the clearing to be undertaken to which this case relates is central to the conclusion that that part of the clearing was not essential management.
  1. [187]
    Council’s point about the differences in the applicable planning schemes is also well made.
  1. [188]
    No matter how desirable consistency and certainty in planning decisions may be, those qualities will not be promoted by purporting to compare cases which are not truly alike.
  1. [189]
    For those reasons, the tender of the evidence concerning Dakabin should be refused.
  1. [190]
    The material sought to be tendered also included one letter relating to another property at 297 Old Gympie Road, Dakabin.[105]  Mr Skoien also contested the admissibility of that evidence.  Mr Given’s submissions did not address it directly.
  1. [191]
    In my opinion, it too is inadmissible. Insufficient is evident from the letter to know how comparable the clearing might be. Mr Skoien’s objection based upon the difference in planning schemes would seem equally applicable to this matter. A further reason why it is not admissible is that it says so little as to be probative of no issue on this appeal. It makes an observation about a general rule relating to clearing to the extent of 1.5 times mature canopy height. Such a general observation is of no assistance in this matter.

Conflict

  1. [192]
    Council alleges that there is conflict between the proposed clearing and specific outcomes SO1 to SO6 of the Natural Features and Resources Overlay Code of the Redcliffe Planning Scheme. It further submits that that conflict is confirmed by conflict with overall outcome (A) of that code. Council submits that the conflict is significant and substantial. Council’s submission in that regard proceeds from the assumption that none of the proposed clearing was essential management.
  1. [193]
    For its part, Traspunt accepts that there is at least minor conflict with SO1 because the activity would not preserve remnant vegetation and minor conflict with SO4. That must necessarily be so given that the development will involve the destruction of vegetation through clearing of land.
  1. [194]
    It submits that there is no conflict with SO2. SO2 provides that the ecological values of habitats and native flora and fauna are maintained where the land is included in an area of significance identified on overlay map 1. In my view, there is unlikely to be conflict with SO2.
  1. [195]
    Similarly, I accept Traspunt’s submission, in light of my acceptance of the evidence of Mr Moffit, that it is difficult to see how there is conflict with SO5 which requires development to address biodiversity through connectivity of ecosystems; viability of protected native species and their habitats; retention of native vegetation; and retention of management of riparian vegetation, in light of my acceptance of the evidence of Mr Moffit.
  1. [196]
    SO6 requires development to maintain and enhance the linkages between areas of riparian or remnant vegetation either through the retention of vegetation or the rehabilitation of land to create a link through the development site. In my view, the development would not conflict with SO6.
  1. [197]
    However, it being accepted by Traspunt that there is some conflict with the planning scheme, it is necessary to determine whether or not there are sufficient grounds to approve that part of the proposed clearing which does not constitute essential management notwithstanding that conflict.
  1. [198]
    In my view, there are not sufficient grounds.
  1. [199]
    In its submissions, Traspunt identifies the sufficient grounds as being the bushfire hazard created by the properties such that boundary clearing is justified.[106]  If that part of the proposed clearing which I have identified to constitute essential management was, contrary to my view, assessable development, I would conclude that there were sufficient grounds to approve that clearing notwithstanding the conflict.  Bushfire prevention considerations would, for the reasons I have identified on the evidence above, provide sufficient grounds to approve that part of the development.  However, for the reasons I have also set out above concerning the clearing of fence lines, I do not accept that there are sufficient grounds based upon bushfire considerations to approve that part of the development.  It ought be refused. 

Summary of conclusions

  1. [200]
    For the reasons set out above, my conclusions are:
  1. The development application insofar as it relates to assessable development was not amenable to the deemed approval processes under the SPA because it was a vegetation clearing application under the VMA and thus excluded by operation of s 330(d) of the SPA;
  2. To the extent that the development application relates to clearing of land for fire breaks on the northern and eastern boundaries of lots 909 and 910 it was “essential management” and not assessable development;
  3. If, contrary to the conclusion in 2 above, the clearing of fire breaks on the northern and eastern boundaries of lots 909 and 910 was assessable development, and was in conflict with the Natural Features or Resources Overlay Code, there are sufficient grounds for its approval;
  4. To the extent that the proposed clearing relates to the clearing along fence lines, it is not essential management and is assessable development;
  5. The clearing along fence lines is in conflict with the Natural Features or Resources Overlay Code and there are not sufficient grounds to approve that development.

Disposition

  1. [201]
    The appeal will be allowed to the extent that it relates to the clearing of fire breaks along the northern and eastern boundaries of lots 909 and 910.
  1. [202]
    There is, however, an area to the South and to the West of the intersection of Cowper Court and Eugenia Avenue where the proposed clearing plan will require some adjustment. The 17 metre clearing along the eastern boundary of Lot 910 should extend South only to the point at which that boundary intersects with the area cleared to be cleared along the northern boundary of Lot 909 below the adjoining residential lots.
  1. [203]
    The parties are to confer with a view to formulating appropriate orders and conditions of approval.

Footnotes

[1]  Exhibit 18, page 16.

[2]  It has the onus: s 493(1) SPA.

[3]  Section 495(1) SPA.

[4]  Exhibit DT10 to the affidavit of David Trask sworn 12 August 2013.

[5]  Section 318(1).

[6]  Section 318(2).

[7]  Section 318(3).

[8]  Section 318(4).

[9]  Section 331(1).

[10]  Section 331(5).

[11]  Section 331(6).

[12]  The letter was incorrectly dated 24 February 2012.  Exhibit DT12 to Mr Trask’s affidavit sworn 31  July 2012.

[13]Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70.

[14]  The Council also relies upon that exception in this proceeding.

[15]  [2012] QPEC 7 at [12].

[16]  Ibid at [16].

[17]  Ibid [18].

[18]  Ibid at [19].

[19]  Ibid at [15].

[20]  Ibid at [20].

[21]  Transcript 4-7 line 5 to 4-12 line 45.

[22]  Transcript 4-16 line 12.

[23]  Transcript 4-16 lines 15-34.

[24]  Transcript 4-7 lines 35-40.

[25]  Transcript 4-17 line 41.

[26]  (1939) 62 CLR 464 at 531-532.

[27]  The only material relating to the declaratory relief proceedings which are before this Court are the originating application and his Honour’s reasons.

[28]  Appellant’s supplementary submissions dated 28 July 2014, paragraph 5.

[29]  Appellant’s supplementary submissions, paragraphs 5 and 6.

[30]  Order 5 July 2013.

[31]  Outline of submissions on behalf of the respondent 25 July 2014, paragraphs 24(b) and 25.

[32]  Ibid at paragraphs 14 and 15.

[33]  Ibid at paragraphs 51(a) and 52.

[34]  Ibid at paragraphs 15 and 53.

[35]  Section 133(1)(d) and (e).

[36]  Section 113.

[37]  Section 114.

[38]  Section 115.

[39]  Section 116.

[40]  Section 117.

[41]  Supplementary submissions of the respondent, paragraphs 2, 3 and 9.

[42]  Ibid at paragraphs 4 and 9.

[43]  Submissions on behalf of the appellant dated 25 July 2014, paragraph 5.3.

[44]  Ibid.

[45]  The VMA does contain a definition of essential habitat and provides for its inclusion in the essential habitat map for the State.

[46]  Appellant’s supplementary submissions, paragraph 5.

[47]  Ibid at paragraph 6.

[48]  Ibid.

[49]  The definition of “national park (recovery)” was originally omitted from the Act because of an oversight.  It was later inserted by s 17 of the Nature Conservation and Other Legislation Amendment Act 2013: see explanatory memorandum to the Nature Conservation and Other Legislation Amendment Bill 2012.

[50]  Section 73(a)(iv).

[51]  Section 112(5)(b).

[52]  Section 113(2)(b).

[53]  Section 113(2)(c).

[54]  Section 114.

[55]  Section 115(2)(b).

[56]  Section 115(2)(c).

[57]  Section 116.

[58]  Section 119(1).

[59]  Section 119(2).

[60]  Section 120(2). 

[61]  Section 10(1)2.(b) in defining “building works” refers to “archaeological artefacts”, as defined under the Queensland Heritage Act 1992; s 263(1)(b) requires the consent of the owner of land the subject of an application if it is for work on land below the high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; s 263(1)(c) requires the owner’s consent if the application is for work on rail corridor land as defined under the Transport Infrastructure Act; s 297(4)(e) in defining “owner” for the purposes of that section refers to a time share scheme as defined under the Local Government Act; s 729(1)(l)(ii) requires an assessment manager to keep available for inspection and purchase the approval documents for the application as defined under the Building Act.  Schedule 1 to the NCA which deals with prohibited development contained, at the relevant time, numerous examples: item 2(a)(xi) refers to the removal of quarry material from a watercourse or lake as defined under the Water Act; item 10(a) refers to sewerage ERA as defined under the Environmental Protection Act; item 10(b) refers to a water treatment ERA as defined under the Environmental Protection Act; item 10(c) refers to an exempt environmentally relevant activity as defined under the Environmental Protection Act; item 12(a) refers to operational work in a wild river, high preservation area or wild river special flood plain management area that interferes with the flow of water in a watercourse, lake or spring, as defined under the Water Act 2000 other than operational work for the maintenance of works as defined under the Water Act 2000; item 12(b) referred to a nominated waterway as defined under the Wild Rivers Act 2005 which was not a dam or weir as defined under the Water Act 2000.  Schedule 3, in defining “forest practice” referred to “land degradation” as defined under the Vegetation Management Act.

[62]  Affidavit of John Finglis filed 23 August 2012; Exhibit 1 – appellant’s bundle of documents, pp 163‑170.

[63]  The particular trigger referred to in the advice was that under item 45(a) of schedule 7 to the SPR where there was an application for a material change of use for urban purposes in any part of the lot that is located within 100 metres of a protected area, forest reserve, critical habitat or area of major interest under the NCA. 

[64]  Exhibit 1, Vol 3, p 1217, para 39.

[65]  Exhibit 1, Vol 3, p 973, para 8.1.1.2(ii).

[66]  Exhibit 1, Vol 3, p 1067.

[67]  Ibid at p 1083, para 5.37.

[68]  Ibid at para 5.38.

[69]  Exhibit 1, Vol 3, p 1214.

[70]  Ibid.

[71]  Exhibit 1, Vol 3, p 973, para 8.1.1.2(iii) and p 984.

[72]  Exhibit 1, Vol 3, p 1217, para 38.

[73]  Ibid at p 1220, para 48.

[74]  Ibid at p 1219, para 42.

[75]  Ibid p 1222, para 82.

[76]  Transcript 3-52, ll 25-27.

[77]  Transcript 3-52, ll 37-43.

[78]  Transcript 3-30, l 45.

[79]  The reference to “the Act” in paragraph (a) appear to be an error.  It was an artefact of an earlier form of the provision and amendments.  The error was corrected by replacing the words “that Act” with “the Planning Act” by s 352 of the Land, Water and Other Legislation Amendment Act 2013,  “Planning Act” being otherwise defined as the SPA.

[80]  Submissions on behalf of the appellant 25 July 2014, paragraph 5.18.

[81]  Submissions on behalf of the appellant, paragraph 2.10. 

[82]  Section 235(1).

[83]  Section 235(2).

[84]  Submissions on behalf of the appellant, paragraph 2.10.

[85]  Exhibit 1, Appellant’s Trial Book volume 1, p 52.

[86]  Exhibit 1, volume 1, p 48.

[87]  Exhibit 1, volume 1, p 62.

[88]  In this regard, it is to be noted at paragraph 5.19 of the Submissions on behalf of the Appellant it is submitted that the SMEC advice was directed towards establishing that the intended clearing was within the confines of Part (a) of the definition of essential management. In my opinion, that submission confines the advice too narrowly. The advice would seem to be framed with paragraph (b) of the definition of “essential management” also in mind.

[89]  Exhibit 1, volume 1, p 208.

[90]  Exhibit 1, volume 1, p 27.

[91]  Exhibit 1, volume 3, p 945, paragraph 1.2.1.1.

[92]  Transcript 4-31 lines 35-40.

[93]  Which is extremely doubtful as it is simply a matter of statutory construction.

[94]  Exhibit 1, volume 1, p 1506.

[95]  Exhibit 1, volume 4, p 1507; transcript T-48 line 40 to T-49 line 5.

[96]  Exhibit 1, volume 4, p 1508; transcript T-48 lines 15-25.

[97]  Exhibit 1, volume 4, p 1571.

[98]  Transcript 2-55 lines 27-41.

[99]  Section 235(1) and (2) of the SPA.

[100]  Outline of Submissions on behalf of the Respondent, paragraph 42.

[101]  Ibid at paragraph 38.

[102]  Ibid at paragraph 39(a).

[103]  The definition of “assessable development” includes development prescribed by a regulation under s 232(1)(c) to be assessable; development declared under a state planning regulatory scheme to be assessable; and development, not prescribed under a regulation to be assessable development, declared assessable under the planning scheme for a planning scheme area.

[104]  Outline of submissions on behalf of the Respondent at paragraph 40(a).

[105]  Exhibit 1, volume 2, pp 933-934.

[106]  Submissions on behalf of the appellant, paragraph 6.4(a).

Close

Editorial Notes

  • Published Case Name:

    Traspunt No. 4 P/L v Moreton Bay Regional Council

  • Shortened Case Name:

    Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2015] QPEC 49

  • Court:

    QPEC

  • Judge(s):

    Horneman-Wren DCJ

  • Date:

    08 Oct 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment-04 Jul 2012Traspunt No 4 Pty Ltd's application for development permit refused by Morton Bay Regional Council.
Primary Judgment[2015] QPEC 4908 Oct 2015Appeal against determination of the Council refusing a development application allowed to the extent that it relates to the clearing of fire breaks along the northern and eastern boundaries of lots 909 and 910: Horneman-Wren SC DCJ.
Primary Judgment[2017] QPEC 7615 Dec 2017Form of order and costs: Horneman-Wren SC DCJ.
Appeal Determined (QCA)[2019] QCA 5126 Mar 2019Leave to appeal granted on both appeals; appeal of Traspunt No 4 Pty Ltd dismissed; appeal of Moreton Bay Regional Council allowed; proceeding remitted to Planning & Environment Court for further consideration and orders: Gotterson and McMurdo JJA and Davis J.
Appeal Determined (QCA)[2019] QCA 25315 Nov 2019Costs judgment: Gotterson and McMurdo JJA and Davis J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Blair v Curran (1939) 62 C.L.R., 464
2 citations
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Cite 2 - (1939) 62 C.L.R., 464
Stevenson Group Investments Pty Ltd v Nunn [2012] QPEC 7
6 citations
Jump To
Cite 1 - [2012] QPEC 7
Cite 2 - [2012] QPEC 7
Cite 3 - [2012] QPEC 7
Cite 4 - [2012] QPEC 7
Cite 5 - [2012] QPEC 7
Cite 6 - [2012] QPEC 7
Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2012] QPEC 70
2 citations
Jump To
Cite 1 - [2012] QPEC 70
Cite 2 - [2012] QPEC 70

Cases Citing

Case NameFull CitationFrequency
Fairmont Group Pty Ltd v Moreton Bay Regional Council [2018] QPEC 202 citations
Trask and Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 2) [2021] QPEC 72 citations
Traspunt No 4 Pty Ltd v Moreton Bay Regional Council [2019] QCA 51 2 citations
Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2017] QPEC 761 citation
Traspunt No 4 Pty Ltd v Moreton Bay Regional Council (No 2) [2019] QCA 2531 citation
Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 67 citations
Traspunt No. 4 Pty Ltd v Moreton Bay Regional Council (No. 3) [2021] QPEC 81 citation
1

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